Ibewuike v. Johns Hopkins Hospital

Filing 33

MEMORANDUM. Signed by Judge William M Nickerson on 5/17/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

NGOZI B. IBEWUIKE

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v.
THE JOHNS HOPKINS HOSPITAL
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Civil Action No. WMN-15-1630

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MEMORANDUM
Before the Court is a Motion for Summary Judgment filed by
Defendant Johns Hopkins Hospital (Hospital).
motion is fully briefed.

ECF No. 25.

The

Upon review of the motion and the

applicable case law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that the motion will be
granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
In her Complaint and Amended Complaint, Plaintiff brought
claims under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq.; and the Americans with Disability Act
(ADA), 42 U.S.C. § 12101 et seq., in addition to claims of
interference and retaliation under the Family and Medical Leave
Act (FMLA), 29 U.S.C. § 2601 et seq.

In opposing the Hospital’s

Motion for Summary Judgment, Plaintiff conceded that she failed
to exhaust her administrative remedies as to her ADA claim and

that she is unable to maintain any claim under Title VII.
No. 28 at 4.

ECF

Thus, those claims will be dismissed.

Furthermore, in her Opposition, Plaintiff offers no response to
the Hospital’s challenge to her ADEA claims.
will be dismissed as well.

Thus, those claims

See Grant-Fletcher v. McMullen &

Drury, P.A., 964 F. Supp. 2d 514, 526 (D. Md. 2013) (summary
judgment proper where non-movant abandoned claim by failing to
address movant’s arguments).
The facts relevant to Plaintiff’s remaining FMLA claims are
as follows.

Plaintiff was employed by the Hospital as a Nurse

Clinician I (Registered Nurse) in November of 2006.

In November

or December of 2011, Plaintiff applied for leave under the FMLA
for the period August 6, 2012, to October 29, 2012, in
anticipation of an child due to be born in August 2012.
application was approved.

That

In February of 2012, Plaintiff

experienced some complications with her pregnancy, was placed on
bed rest, and was told that the delivery of the child might be
moved to May 2012.

Plaintiff amended her FMLA application to

request leave from March 23, 2012, to June 15, 2012.

That

request for FMLA leave was also approved.
Because the end of her FMLA leave was quickly approaching,
Plaintiff’s nurse manager, Kathy Wagner-Kosmakos, sent Plaintiff
a letter on June 5, 2012, offering her the opportunity to apply
for a medical leave of absence.

ECF No. 25-4.
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The Hospital’s

Leaves of Absence Policy provides certain qualified employees
with up to six months of free medical and dental insurance at no
cost to the employee during the leave period.

Plaintiff was

referred to the provisions and regulations concerning leaves of
absence and she completed a leave of absence request form on
June 9, 2012, on which she acknowledged by her signature that
she had reviewed and understood the contents of the Hospital’s
Leaves of Absence Policy.

Pl’s Dep. at 29.

Included in that

Policy is the requirement that any employee on a leave of
absence “must obtain the written consent of the manager/director
of his/her department, prior to engaging in paid employment of
any kind during the period of absence” and provides further that
“[i]f the employee fails to disclose or misrepresents dual
employment during leave, he/she will be terminated as having
abandoned his/her position.”

ECF No. 25-8 at 16.

Plaintiff’s

leave request was approved on June 13, 2012, by the nurse
manager on Plaintiff’s unit, Kathleen Wagner-Kosmakos.
Plaintiff’s child was delivered prematurely and by cesarean
section on May 12, 2012.

On June 11, 2012, Plaintiff visited

her doctor, Nikki Koklanaris, and Dr. Koklanaris instructed
Plaintiff that she would need to be on light duty for the next
six weeks.

Dr. Koklanaris completed a work restriction form,

ECF No. 25-4, and Plaintiff took that form to Wagner-Kosmacos
and asked to be given a light duty assignment.
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Wagner-Kosmacos

forwarded the form to Frances Humphrey-Carothers, the Hospital’s
Associate Director of Occupational Health Services.

According

to Plaintiff, Wagner-Kosmacos and Humphrey-Carothers had a short
20-minute meeting after which Plaintiff was told that there was
no light duty assignment available for her.1

Plaintiff now

contends that this effectively terminated her employment with
the Hospital.
Several weeks earlier, on May 22, 2012, Plaintiff had
applied for a Registered Nurse position at Levindale Hebrew
Geriatric Center and Hospital (Levindale).

On June 13, 2012,

Levindale sent Plaintiff a letter informing her that she was
being offered a full time position to begin on June 18, 2012.
She accepted that position on June 15, 2012, and began work at
Levindale on June 18, 2012.

At some point on or before July 10,

2012, the Hospital learned that Plaintiff had taken the position
at Levindale, without permission, in violation of the terms of
the Hospital’s Leaves of Absence Policy.

On July 12, 2012, the

Hospital sent Plaintiff a letter stating that her employment was
being terminated.

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Plaintiff had advocated that she be given a clerical position
instead of a nursing position but, upon investigation, that
proved impossible because clerical positions at the Hospital are
unionized and Plaintiff is not a member of the bargaining unit.
Plaintiff acknowledged in her deposition that she was requesting
a position that did not “involve things that I usually do for my
patients.” Pl.’s Dep. at 63.
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Contending that her employment was actually terminated on
June 12, 2012, Plaintiff argues that the termination of her
position interfered with her FMLA rights.

Plaintiff suggests

that this constituted interference because “under the
regulations, ‘Interfering with the exercise of an employee’s
rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using
such leave.’”

ECF No. 28 at 9 (quoting 29 C.F.R. § 825.220,

emphasis added by Plaintiff).

Plaintiff also suggests that this

termination was in retaliation for her having previously taken
FMLA leave.

The Hospital moves for summary judgment as to both

the FMLA interference and the FMLA retaliation claims.
II. LEGAL STANDARD
Rule 56(b) of the Federal Rules of Civil Procedure provides
that summary judgment shall be entered in favor of a moving party
when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

See

Rule 56

mandates summary judgment against a party “who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Id.

Trial judges have an

affirmative obligation to prevent factually unsupported claims from

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proceeding to trial.

Felty v. Graves-Humphreys Co., 818 F.2d 1126,

1128 (4th Cir. 1986).
Where, in a case “decided on summary judgment, there have not
yet been factual findings by a judge or jury, and [one party’s]
version of events . . . differs substantially from [the other
party’s,] . . . courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the [summary judgment] motion.”
372, 378 (2007).

Scott v. Harris, 550 U.S.

However, “[a]t the summary judgment stage, facts

must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.”

Id. 550

U.S. at 380.

III. DISCUSSION
To make out a prima facie case of interference under the
FMLA, the employee must, among other factors, show “that the
employer violated § 2615 by interfering with, restraining or
denying his or her exercise of FMLA rights”

Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).

As

discussed above, it is undisputed that the Hospital granted
Plaintiff’s initial request for FMLA leave for the period August
6, 2012, to October 29, 2012, as well as her amended request for
the period March 23, 2012, to June 15, 2012.

Plaintiff

acknowledged in her deposition that she received the full 12

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weeks of available FMLA leave for the period from March 23,
2012, to June 15, 2012.

Pl.’s Dep at 48.

Although it is less than clear, Plaintiff appears to argue
that the Hospital’s denial of her request for a light duty
assignment on June 12, 2012, constituted a failure to reinstate
her, in violation of the FMLA.

Under the FMLA, however, “[a]n

employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had
been continuously employed during the FMLA leave period.”
C.F.R. § 825.216(a).

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“If the employee is unable to perform an

essential function of the position because of a physical or
mental condition, . . . the employee has no right to restoration
to another position under the FMLA.”

Id. at 825.216(c).

Here,

it is undisputed that Plaintiff was not able to perform the
essential functions of her job as a Registered Nurse and
Plaintiff cites no authority for her position that she was
entitled to be given an entirely different position at the
Hospital.

The Court finds that the Hospital is entitled to

summary judgment on Plaintiff’s FMLA interference claim.

See

Rodriguez v. Smithfield Packing Co., 545 F. Supp. 2d 508, 515
(D. Md. 2008) (holding that “an employee returning from FMLA
leave has no right to restoration to her prior or an equivalent
position where the person is ‘unable to perform an essential
function of the position because of ... the continuation of a
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serious health condition”) (internal quotations omitted); Wilder
v. Talbot Co., Civ. No. CCB-11-1019, 2012 WL 1901335, at *3 (D.
Md. May 23, 2012) (same).
As for her retaliation claim, in the absence of direct
evidence of retaliation, as in the present situation, Plaintiff
must prove her claim under the pretext framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Taylor

v. Rite Aid Corp., 993 F. Supp. 2d 551, 566 (D. Md. 2014).

To

make a prima facie showing under the McDonnell Douglas
framework, a plaintiff must present evidence “that [s]he engaged
in protected activity, that the employer took an adverse action
against [her], and that the adverse action was causally
connected to the plaintiff’s protected activity.”

Cline v. Wal-

Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).

Once a

plaintiff “puts forth sufficient evidence to establish a prima
facie case of retaliation” and the defendant “offers a nondiscriminatory explanation” for the plaintiff’s termination, the
plaintiff still “bears the burden of establishing that the
employer’s proffered explanation is pretext for FMLA
retaliation.”

Nichols v. Ashland Hosp. Corp., 251 F. 3d 496,

502 (4th Cir. 2001).
Plaintiff’s retaliation claim is premised on her contention
that her employment was terminated on June 12, 2012, and that
this termination was in retaliation for her having previously
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taken FMLA leave.

The Hospital counters that Plaintiff’s

employment was not terminated until July 12, 2012, when it was
terminated due to Plaintiff’s violation of the Hospital’s Leaves
of Absence Policy.

The Court finds that no reasonable jury

could conclude that Plaintiff’s employment was terminated on
June 12 in that Plaintiff’s own conduct subsequent to that date
belies the conclusion that even she believed that her employment
was terminated as of that date.
It is undisputed that Plaintiff was told on June 12 that
there was no light duty assignment available for her.

Being

denied a light duty assignment, however, does not constitute a
termination of employment.

As noted above, there is no

requirement under the FMLA that she be offered a position
different than the position in which she was employed prior to
taking leave.

Counter to any suggestion that her employment was

being terminated, Plaintiff was permitted to apply for extended
leave so that her health insurance could continue, without any
cost to her.

Plaintiff acknowledged in her deposition that she

took her extension form to the Hospital on June 13 to have that
form signed by Wagner-Kosmakos and that Wagner-Kosmakos signed
the form on that date.

Pl.’s Dep. at 33-34.

Plaintiff then

went back to the Hospital on June 14 to hand in the extension
form.

Id.

Furthermore, it is undisputed that the Hospital

continued to provide health insurance for Plaintiff and that
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Plaintiff also received short term disability payments from the
Hospital through the month of June 2012.
Holly Reilly ¶ 9.

ECF No. 25-8, Aff. of

These facts and Plaintiff’s own conduct are

completely inconsistent with the belief she now purports to hold
in opposing summary judgment, i.e, that she was terminated on
June 12.
Plaintiff attempts to establish that her termination was on
June 12 instead of July 12 because she is aware that she cannot
meet her burden to establish that the July 12 termination was
pretexual.2

Plaintiff was violating the provision prohibiting

the taking of paid employment while on a leave of absence
without first obtaining the permission of the manager of her
unit and, for that reason, her employment was terminated.
Plaintiff admits that she was aware of that policy and that she
never obtained the consent of her manager to work at Levindale
while on leave.
In an attempt to establish pretext, Plaintiff notes that,
when she first started working at the Hospital, she was also
employed at another medical facility and she was never told that
dual employment was not permitted.

ECF No. 28 at 14.

That

there is no prohibition of dual employment while an employee is

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The Court will assume, without deciding, that Plaintiff could
establish a prima facie case of retaliation.
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working at the Hospital, does not imply that the Hospital cannot
prohibit taking paid employment while on a leave of absence.
In arguing pretext, Plaintiff also posits that she was not
aware that she had been granted an extended leave of absence
until July 10, 2012, and, thus, her taking paid employment was
not a ground for dismissal.

That position, however, is

inconsistent with statements that Plaintiff has previously made.
In a July 9, 2012, email to Jaclyn Quackenbush, HR Consultant at
the Hospital, Plaintiff wrote, “I took the FMLA extension for[m]
which [Wagner-Kosmakos] sent to me to her and she signed it, and
I turned it into HR just so at least I and my family will have
medical insurance before I get another job.”

ECF No.

That her

extended leave had been approved was also evidenced by the
Hospital’s continued provision of health insurance and Plaintiff
must also have been aware that she continued to be insured.
Having concluded that the Hospital has proffered a nonretaliatory reason for the termination of Plaintiff’s employment
and that Plaintiff has come forward with no evidence that this
reason was pretextual, the Court will grant the Hospital summary
judgment as to Plaintiff’s FMLA retaliation claim as well.

A

separate order consistent with this memorandum will issue.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: May 17, 2017

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